How Bill C-51 Will Effect the “Search and Seizure Rights” of Canadians

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August 28, 2015
Farjoud Law

Government officials have it tough in terms of finding way to keep things calm and not because any anarchy, but in trying to protect and safeguard its citizens, can they go too far and supersede individual’s right to privacy? The question remains, how far is too far and just how much is too much?

The Canadian Charter of Rights and Freedoms, Section 8, provides Canadian citizens with protection against any unreasonable search and seizure.  It is a Constitutional Right and this ultimately protects personal information that is obtained through a search and seizure of your property.

The government recently proposed an “Anti-terrorism Act,” (Bill C-51) that looks to restructure the national security laws. In turn, this practically erases Section 8. This new Bill will give extensive powers to CSIS’s investigators to detain, arrest, interrogate, search and seize anyone they may suspect involved in a terrorist plot.

Search and seizure is widely seen around the globe, and judicial warrants are there to prevent Charter violations, not allow them to happen. That is because the Charter privacy protection is qualified: the Charter protects against “unreasonable” searches and seizures, and any search under a warrant is prima facie proper. “Unreasonable” typically refers to a search without a warrant.

Most search warrants are based on reasonable and likely belief that something will be found. But Toronto police says it could happen if “there may be evidence.”  For citizens of Toronto, their privacy will hinge on a “maybe”.  Any private communications are now open to examination by Canada’s intelligence agency CSE who have free rein to all information from this bill.

The one problem with the new Bill is in Section 1 where it can allow some rights to be overturned where this would be “reasonable” and “prescribed by law”.   Basically, all these meaningful legal decisions will be done in secret, with only the judge and the CSE or the CSIS present. The person whose rights are about to be affected by the illegal activity will not be there to defend his or her constitutional rights.  The main question is, and will remain to be, just where are the limits of the government and how far can they act beyond the law? Canadians are about to find out.

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